Citation Nr: 1017437
Decision Date: 05/11/10 Archive Date: 05/26/10
DOCKET NO. 05-23 294 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
M. J. In, Associate Counsel
INTRODUCTION
The Veteran served on active duty from March 1953 to March
1955. This matter comes properly before the Board of
Veterans' Appeals (Board) on appeal from April 2004 and June
2004 rating decisions by the Department of Veterans Affairs
(VA) Regional Office in St. Louis, Missouri (RO).
This appeal has been advanced on the Board's docket pursuant
to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2)
(West 2002).
FINDINGS OF FACT
1. The evidence of record shows that the Veteran's currently
diagnosed bilateral hearing loss cannot be reasonably
disassociated from his military service.
2. The Veteran's current tinnitus is related to his
bilateral hearing loss.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was incurred in active military
service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002);
38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2009).
2. Tinnitus is the result of or proximately due to the
Veteran's service-connected bilateral hearing loss. 38
U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.303, 3.310 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As provided for by the Veterans Claims Assistance Act of
2000, VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). In
this case, the Board is granting in full the benefit sought
on appeal. Accordingly, without deciding that any error was
committed with respect to the duty to notify or the duty to
assist, such error was harmless and need not be further
considered.
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§ 3.303. Service connection for certain chronic diseases,
including sensorineural hearing loss, will be presumed if
they are manifest to a compensable degree within the year
after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137
(West 2002); 38 C.F.R. §§ 3.307, 3.309. Service connection
may also be granted for any disease initially diagnosed after
service, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman
v. Principi, 3 Vet. App. 503, 505 (1992).
In order to prevail on the issue of service connection there
must be medical evidence of a current disability; medical
evidence, or in certain circumstances, lay evidence of in-
service occurrence or aggravation of a disease or injury; and
medical evidence of a nexus between an in-service injury or
disease and the current disability. See Hickson v. West, 12
Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App.
341, 346 (1999).
Service connection may be established on a secondary basis
for a disability that is proximately due to or the result of
a service-connected disease or injury. 38 C.F.R. § 3.310(a)
(2009). Establishing service connection on a secondary basis
requires evidence sufficient to show (1) that a current
disability exists; and (2) that the current disability was
either (a) caused by or (b) aggravated by a service-connected
disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en
banc). When aggravation of a Veteran's nonservice-connected
condition is proximately due to or the result of a service-
connected condition, the Veteran shall be compensated for the
degree of disability, but only that degree, over and above
the degree of disability existing prior to the aggravation.
Id.
Impaired hearing will be considered a disability when the
auditory threshold in any of the frequencies 500, 1000, 2000,
3000, or 4000 Hertz is 40 decibels or greater; or when the
auditory thresholds for at least 3 of the frequencies 500,
1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater;
or when speech recognition scores using the Maryland CNC Test
are less than 94 percent. 38 C.F.R. § 3.385.
The Veteran is seeking entitlement to service connection for
bilateral hearing loss and tinnitus. He attributes his
hearing disorders to his inservice acoustic trauma sustained
from loud noise. Specifically, he claims that he was exposed
to noise from heavy artillery fire and explosions during his
basic infantry training and serving as a driver to a forward
observer while assigned to an armored field artillery unit.
Historically, the Veteran served on active duty in the Army
from March 1953 to March 1955. His DD-214 shows that he was
assigned to Headquarter Battery 78th Armored Field Artillery
Battalion.
The Veteran's service treatment records are negative for any
complaints or diagnoses of hearing loss or tinnitus. The
March 1955 separation examination report stated that the
Veteran had 15 out of 15 hearing on both whispered and spoken
voice testing, bilaterally. Pure tone audiometry testing was
not conducted.
After separation from military service, a May 1987 private
audiological examination provided by his employer, O.C.
Fiberglass Company revealed pure tone thresholds, in
decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
15
65
75
85
LEFT
20
20
75
90
99
In a June 1987 cover letter to the reports of hearing
examinations conducted in May 1987, May 1988, and June 1989,
the Veteran's employer stated that the Veteran's work
environment did not involve noise exposure.
A May 1988 private examination noted pure tone thresholds, in
decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
15
65
75
85
LEFT
20
20
75
80
85
A June 1989 private examination noted pure tone thresholds,
in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
15
65
75
90
LEFT
25
25
75
90
90
In an October 1998 VA audiological examination report, the
Veteran reported a positive noise exposure history, but
denied any surgery, dizziness, ear disease, or tinnitus.
Pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
35
65
75
95
LEFT
20
25
70
90
105
The impression was mild to profound sensorineural hearing
loss, bilaterally, with good speech discrimination.
Subsequent VA treatment records show that bilateral hearing
loss for VA purposes has been consistently diagnosed.
38 C.F.R. § 3.385.
The Veteran underwent a VA audiological examination in
September 2003. The examiner noted that the claims file was
reviewed. The Veteran reported that he served as a driver of
a forward observer in the military, which involved trips to
the field where heavy artillery was fired at targets. He
also reported that he was employed with O.C. Fiberglass
Company in 1961. He worked on the loading dock and wore
hearing protection when subjected to loud noise. His hearing
was tested every two years and he was told he had problems
with hearing. He began wearing hearing aids in 1974 or 1976.
Recreationally, he reported using a 22 caliber rifle for deer
and pheasant hunting once a year with the use of ear muffs.
Pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
50
60
90
95+
100+
LEFT
50
40
90
100
100+
Speech audiometry revealed speech recognition ability of 80
percent in the right ear and of 60 in the left ear. The
diagnosis was moderate to profound sensorineural hearing loss
in the right ear and profound sensorineural hearing loss in
the left ear. The examiner opined that based on the
Veteran's oral history and review of records, "it is less
likely than not that some portion of the hearing loss is
related to exposures and duties while in service[.]"
In April 2004, the Veteran was accorded another VA
audiological examination.
Pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
45
55
85
95
105
LEFT
45
45
90
100
105
Speech audiometry revealed speech recognition ability of 80
percent in the right ear and of 78 in the left ear. After
reviewing the claims file and conducting clinical interview
and examination of the Veteran, the examiner noted that while
exposure to hazardous noise in basic training and while
assigned as a driver to a forward observer can be conceded,
no hearing loss was identified until 12 to 15 years after
discharge when his employer was conducting periodic hearing
evaluations. The examiner opined that "hearing loss is less
likely than not a consequence of military service" and "it
is less likely than not that any portion of the hearing loss
is due to events or exposures while serving in the
military." With respect to tinnitus, the examiner opined
that
subjective tinnitus is less likely than
not a consequence of military service.
No nexus can be established between the
military noise exposure and the onset of
the subjective tinnitus. In addition,
the description of the frequency and
duration of the subjective tinnitus
matches that of individuals without
hearing loss or a history of noise
exposure. In other words, the
description of the tinnitus is not
pathological and the frequency and
duration appears to fall within the range
of a normal experience.
In support of his opinion, the examiner stated that the post
service noise exposure, including both occupational and
recreational, would account for the reported hearing loss
during the 1960s. The examiner also stated that although the
Veteran did not considered his work environment noise
hazardous, the history strongly suggested a progressive
hearing loss over the course of his civilian employment that
would be consistent with noise exposure, which can be
inferred by the periodic hearing tests by his employers.
However, the examiner noted that review of the employer's
occupational health records might provide the basis for
reconsideration for the opinion as the records had the
potential to confirm if a hearing loss was present as early
as 1961, if the Veteran was exposed to post service hazardous
noise, and if the exposure may have caused a progressive
hearing loss.
Most recently, the Veteran was afforded a VA examination in
March 2009. After reviewing the claims file, the examiner
noted that additional evidence of the earlier occupational
hearing conservation test records had been associated with
the claims file since the last VA examination. The Veteran
reported the same military noise exposure history as in
earlier VA examinations. After discharge, the Veteran
reported that he first became aware of his hearing loss in
1956 when he applied for a job with S.B. Company, at which
time he had a hearing test and was told his hearing was bad.
Pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
45
55
85
90
105
LEFT
50
45
90
100
105+
Speech audiometry revealed speech recognition ability of 76
percent in the right ear and of 78 in the left ear. The
diagnosis was bilateral sensorineural moderate to profound
hearing loss. The examiner opined that "it is as likely as
not that the Veteran's [sic] acquired some degree of hearing
impairment while serving on active duty." He also opined
that "[i]t is as likely as not that tinnitus is a symptom of
the current hearing impairment. It is less likely as not
that tinnitus is a direct result of acoustic trauma during
military service." In support of these conclusions, the
examiner provided the following rationale:
The examiner's initial clinical
impression on seeing the 1981
occupational hearing tests was that it
was less likely as not to be due to
post service noise exposure, i.e. due
to the 20 years of work at [O.C.] or
the years at [C]. Hunting with a 12
gauge annually though would be a
significant confounding
factor. . . . Based on new information
presented and 37 years of clinical
practice including managing the Air
Force's largest hearing conservation
site, it is the opinion of the examiner
that it is as likely as not that some
degree of hearing loss was acquired
during service. Without the new
information, the issue would be one of
mere speculation. . . . But as the IOM
study points out, without
documentation, the evidence is not
sufficient to determine the probability
of acquiring a noise induced hearing
loss associated with service in the
military or in specific branches of the
military, for a given individual.
In addressing the earlier VA opinions of record, the examiner
stated and there had been insufficient evidence to conclude
that hearing impairment was acquired while the Veteran was on
active duty; however this changed with the new evidence of
all Columbia VAMC audiograms and the occupational hearing
test from the 1980s that were not previously available. The
examiner also stated
[w]ithout knowledge of the severity of
the hearing loss in 1981 and the
company's statement that the Veteran was
not considered noise exposed under the
OSHA[(Occupational Safety and Health
Administration)] rule, any opinion would
have to rely on the Veteran's report of
symptoms of acoustic trauma during
service. . . . Without the records from
1981, the preponderance of available data
did not support onset during service.
With respect to tinnitus, the examiner stated that the
Veteran had not reported a recollection experiencing tinnitus
following acoustic events on active duty and the best data
was that the symptoms had onset from 15 to 44 years after
service. The examiner thus noted that it was difficult to
establish a nexus with service, however, noted that tinnitus
is "as likely as not a symptom associated with the
[Veteran's] hearing loss[.]"
Based on the totality of the evidence, and with application
of the benefit of the doubt rule of 38 U.S.C.A. § 5107(b),
the Board finds that the Veteran's currently diagnosed
bilateral hearing loss and tinnitus are related to his
military service. There are currently diagnosed bilateral
sensorineural hearing loss and tinnitus. See Degmetich v.
Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the
existence of a current disability is the cornerstone of a
claim for VA disability compensation).
Initially, the Board accepts the Veteran's contentions that
he was exposed to significant acoustical trauma during his
military service while assigned to an armored field artillery
unit. The Veteran also claims that he has had hearing
problems since as early as in 1956, which was only a year
after his military discharge. The Veteran is competent to
attest to the factual matters of which he had first-hand
knowledge, such as an in-service exposure to artillery noise
or a decrease in hearing acuity. See Layno v. Brown, 6 Vet.
App. 465 (1994). Notwithstanding the lack of medical
evidence contemporaneous with the Veteran's claimed onset of
his hearing loss, the Board finds the Veteran's statements to
be credible. See Washington v. Nicholson, 19 Vet. App. 362,
368 (2005); see also Buchanan v. Nicholson, 451 F.3d 1331,
1337 (Fed. Cir. 2006). As a finder of fact, the Board, when
considering whether lay evidence is satisfactory, the Board
may also properly consider internal inconsistency of the
statements, facial plausibility, consistency with other
evidence submitted on behalf of the Veteran, and the
Veteran's demeanor when testifying at a hearing. See Dalton
v. Nicholson, 21 Vet. App. 23, 38 (2007).
Furthermore, the Board finds that the March 2009 VA opinion
relates the Veteran's bilateral hearing loss and tinnitus to
his military service. The March 2009 VA examiner concluded
that "it is as likely as not that the Veteran acquired some
degree of hearing impairment while serving on active duty."
While the examiner stated that the evidence was not
sufficient to determine the probability of acquiring a noise
induced hearing loss associated with military service, the
opinion suggests that the medical evidence, at the least, is
in relative equipoise so as to allow application of the
benefit of the doubt rule as required by law and VA
regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The
negative etiological opinions offered by the September 2003
and April 2004 VA examiners are deemed as not probative
evidence, because, as was noted by the March 2009 VA
examiner, the additional evidence relating to the Veteran's
post-service noise exposure was not available at the time of
those examinations to base an informed etiological opinion.
Accordingly, the probative evidence of record relates the
Veteran's currently diagnosed bilateral hearing loss to his
military service. In addition, the March 2009 VA examination
report also provides a positive etiological opinion for the
Veteran's tinnitus. While the examiner stated it was
difficult to establish a direct link between the Veteran's
tinnitus and service, he concluded that the Veteran's
tinnitus is a symptom associated with his hearing loss.
Accordingly, although service connection for tinnitus is not
warranted on a direct basis, as service connection for the
Veteran's bilateral hearing loss is now established, service
connection for tinnitus is also warranted as secondary to his
bilateral hearing loss.
ORDER
Service connection for bilateral hearing loss is granted.
Service connection for tinnitus is granted.
______________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs